Garage doors and opening mechanisms have been the subject of patents for 150 years. Back in 1919 Lee Hynes filed an early patent on electric-controller for a car door operating mechanism. Despite this long history, the Federal Circuit found Chamberlain’s patent ineligible under 35 U.S.C. 101 as directed to an abstract idea.

Chamberlain’s opener consists of three key elements:

A device controller — This is an electronic component that receives and processes control signals and sends out the orders to open/close.

A movable barrier interface coupled to the controller — This is the actual drive or clutch mechanism that powers the door movement.

A wireless data transmitter coupled to the controller.

By the time this patent application was filed, all three of these elements were all “generally well understood in the art.” The innovative feature of the claims is that the system is designed to transmit the door’s “present operational status” — i.e., is it moving up; moving down; reversing; blocked; etc. The signal also includes a “relatively unique” identifier for folks with multiple garage doors so that the unclaimed receiver can tell which door is up/down. Note here that there is nothing new about these various status points — the only difference is that it that the signals are being sent, and being sent wirelessly.

So, although the patent claims a garage-door-opener including various physical components, the point-of-novelty is that a particular signal is being sent wirelessly. In its decision, the Federal Circuit found the wireless transmission of status to be an abstract idea: “the broad concept of communicating information wirelessly, without more, is
an abstract idea.” One Alice Step 2, the court held that the claims did not include any inventive concept beyond the excluded abstract idea:

In other words, beyond the idea of wirelessly communicating status information about a movable barrier operator, what elements in the claim may be regarded as the “inventive concept”?

[W]ireless transmission is the only aspect of the claims that CGI points to as allegedly inventive over the prior art. . . . Wireless communication cannot be an inventive concept here, because it is the abstract idea that the claims are directed to. Because CGI does not point to any inventive concept present in the ordered combination of elements beyond the act of wireless communication, we find that no inventive concept exists in the asserted claims sufficient to transform the abstract idea of communicating status information about a system into a patent-eligible application of that idea.

The new petition has two focal points (1) whether eligibility should be seen as a “narrow exception;” and (2) whether the Federal Circuit errs in its approach of separating the claim into various components and excluding the abstract idea portion from the claim when considering Alice Step 2.

Question presented:

Whether the Federal Circuit improperly expanded § 101’s narrow implicit exceptions by failing to properly assess Chamberlain’s claims “as a whole,” where the claims recite an improvement to a machine and leave ample room for other inventors to apply any underlying abstract principles in different ways.

The root cause of all this ire and uncertainty is the Federal Circuit’s insistence once again on crafting an elaborate test that strays from—and here, contradicts—the plain text of the Act.

Id.

The petition ends with a call for immediate action — calling out the current situation as “a patent emergency.” The breadth of eligibility challenges are shifting innovator behavior:

[T]here is no time. Innovators are adapting their behavior right now to the Federal Circuit’s new patent-hostile regime. Investors are deciding now to withhold investments they would have made before the Federal Circuit changed the law. Waiting any longer to intervene could inflict irreparable harm on U.S. industry.

Techtronic has already waived its right to respond to the petition — meaning that the Supreme Court may act on the petition before the close of its current session in June.

86 thoughts on “A Patent Emergency”

It’s becoming increasingly clear to me that 101 is just code for “invisible”.

They don’t want to grant patents for invisible things. Because invisible things are magic.

I understand how hard it is to deal with intangibles. It’s why I chose mechanical engineering over electrical engineering. But we have to give EEs more patents than just that first “copper wire hooked to a switch” patent.

Perhaps these bureacrats could reference the wiki for Wireless. It’s full of helpful explanations of what it is, and how it’s not abstract to a POSITA (I feel kind of grimy even validating the proposition that it might be).

The “patent emergency” phrase also appears in the very first sentence of the brief. One has to wonder how counsel could have been so tone deaf to use hyperbolic language like that, especially in the current climate. The Supreme Court is currently receiving dozens of certiorari petitions about the constitutional implications of legal issues stemming a real national “emergency,” so they’re not going to take kindly to a petitioner who uses that word to describe legal uncertainty in an obscure and (comparatively) unimportant area of patent law. Coupled with the fact that the invalidation in this particular case wasn’t controversial and did not push the borders of Section 101 jurisprudence, this petition was little more than a billing exercise. Cert. denied.

OT but important:
IPO: “Court Lacked Subject Matter Jurisdiction Where USPTO Had Not Taken Final Agency Action. Odyssey Logistics and Tech. v. Iancu, 19-1066 – Friday [per the APA]”
This is long established law which I had difficulty getting even some corporate CPCs to understand. If you think the PTO is doing something you strongly object to, you can’t just run off to a District Court for legal relief before you exhaust your PTO remedies. [Other than the limited grounds for an interlocutory appeal of a pending PTO matter under the APA. Such as an agency refusal to act. Or, a very rarely granted mandamus action, like the interesting pending Gilbert Hyatt EDVA D.C. case, where this Odyssey Logistics Fed. Cir. decision is likely to be asserted by the PTO.]

“Right because the DOJ investigating the FBI’s actions and finding them to have been [b]without any legit reason for questioning a citizen in the first place [/b]and subsequently finding that the evidence gathered was no good as a consequence (even if relevant to a crime) is all politics.”

You ever hold a security clearance, 6? Do you really think the DOJ takes the position that a nameless NSC staffer lying to the NSA about a contact with a Russian agent isn’t a basis for an FBI counter intelligence investigation? Why would it be any different when the NSA lies to the VP?

“Frankly [b]I would like the “police” and those overseeing them as a whole to be doing this more often, not less. [/b]Especially when it comes to “federal police” like the FBI.”

I agree! The FBI and the DOJ did some at least undesirable stuff, enabled in part by the extremely harsh mentality of the national security context. The blatent politics is giving the president’s Buddy a pass without doing anything to restrict the ability of the DOJ/FBI to play the games that snared him.

“You ever hold a security clearance, 6? Do you really think the DOJ takes the position that a nameless NSC staffer lying to the NSA about a contact with a Russian agent isn’t a basis for an FBI counter intelligence investigation?”

I’m going to say no and no I believe here. I’m pretty sure that what I think was said in the part you quoted. There was no lying from a nameless (I believe you mean flynn pre-unmasking) NCS staffer to the NSA in the first place iirc. The FBI started asking Flynn questions to try to f with the trump campaign iirc.

“I agree! The FBI and the DOJ did some at least undesirable stuff, enabled in part by the extremely harsh mentality of the national security context. The blatent politics is giving the president’s Buddy a pass without doing anything to restrict the ability of the DOJ/FBI to play the games that snared him.”

Good that we agree, but mmmmm on the later stuff I mean that’s a bit of a stretch. I can kinda see the politics angle, but I’m not sure that the gov would throw a sht fit in a normal case and they may just throw it out, and likely would find the FBI shinanigans sooner (remember the only reason this was so late was muh russiagate iirc). As to the getting good rules for everyone the president and the DOJ don’t have that authority I doubt, that needs to come from congress (or maybe the courts but prob congress). Although yes, it would be nice if those arses would get their sht together on such things, but alas we find ourselves in the corporatocratic situation we are in with our congress where nobody wants to take responsibility for anything liberty etc. related. They all just want their corporate/donor money/(corporate gig when they “retire”) to run again.

>>I’m going to say no and no I believe here. I’m pretty sure that what I think was said in the part you quoted. There was no lying from a nameless (I believe you mean flynn pre-unmasking) NCS staffer to the NSA in the first place iirc.

Er, “nameless NSC” staffer was just a hypothetical. I was just saying that some ordinary Joe with a clearance would get nailed for lying to the FBI, while Flynn walks. Because if some ordinary Joe with a clearance lies to the FBI about a Russian contact, THEY WOULD GET NAILED.

>>The FBI started asking Flynn questions to try to f with the trump campaign iirc.

15 January 2017: Pence repeats Flynn lie to him on national TV.

24 January 2017: Flynn is interviewed by the FBI.

>>As to the getting good rules for everyone the president and the DOJ don’t have that authority I doubt, that needs to come from congress (or maybe the courts but prob congress).

No, not really. The DoJ could adopt measures as self-imposed policies. Of course later administrations could reverse those policies at a whim, but it’d be something to do in the meantime if Barr actually cared about what went wrong with Flynn’s case.

OT, but I can understand why the implied “Patent Emergency” {this title} in the preceding blog entitled “Spurring and Clearing the Path for Open COVID Innovation Through Contextual Patent Disclosure” [listing various academic’s solutions in search of problems] did not allow any comments. Many such comments, if allowed, would undoubtedly have pointed out that no actual such Covid-19 patent-obstacles to either R&D or treatment product distributions or vaccines or unreasonable prices have even been demonstrated so far.

Take for example your choice here: responding to yourself with a statement made to you from a different thread which does NOTHING to advance ANY dialogue, and on a comment you made that was plainly asinine on its face.

The court achieved the right result, but for the wrong reason. The court should have conducted an obviousness analysis not a 101 analysis. 101 is thus being used as a short cut to reach a result. Inventive concept does not belong in patent eligibility.

My long-term skepticism is mostly derived from that recent discussion on the other place where an important and engaged Senator said “listen, there needs to be compromise…” and the denizens of the other place cried out “No compromise!”

And that’s actually not to say that this couldn’t be a rational strategy on their part.

But the whole event does indicate the reality of a significant anti-reform lobby has significant hold on congress, and that a significant part of the pro-reform side is uninterested in giving up anything to get reform (to say nothing of which side is right or justified, ok? This is just a description of the battlefield.) In other words: deadlock. That is a strong basis for being skeptical of congress getting anything done anytime soon.

My first post is caught in a filter – but if you really think that ‘compromise’ was the driver of the stalled attempt to fix 101, then you are far less thoughtful and absent of any decent capacity of critical thinking than the already very low bar that I have you at.

“U.S. District Judge Emmet G. Sullivan has retained Beth Wilkinson to argue his reasons for investigating the appropriateness of dismissing the case against President Trump’s former national security adviser.”

A U.S. District Judge hires a lawyer to respond to a Writ of Mandamus from his Court of Appeals.

Sorry to bother you. NW and A. Moose have labeled you as some kind of guru; not just an examiner. I thought maybe you could help us all wrap our brains about a Federal Judge hiring a lawyer to respond to a Writ from the Court of Appeals.

“In a rare step that adds to this criminal case’s already unusual path, U.S. District Judge Emmet G. Sullivan has retained Beth Wilkinson to represent him in defending his decision to a federal appeals court in Washington, according to a person familiar with the hire who spoke on the condition of anonymity because of the sensitivity of the matter. The U.S. District Court of Appeals for the District of Columbia Circuit is now examining the judge’s actions and the larger case against Flynn after lawyers for President”

From one of anon’s articles I believe. Lol WUUUUUTTTT? The judge hired a lawyer to defend his own actions to an appeals court? lulz, didn’t know that was allowed.

“to set free a confessed criminal who and secretly acted as a foreign agent and lied about it.”

That was never actually proven in court. He just copped a plea deal because our “justice” system is re tar ded. Plea deals should be made in secret at the beginning of trial, and only if convicted then the plea deal can be enacted. If they should be allowed in cases where the evidence is not 100000% rock solid.

A U.S. District Judge hires a lawyer to respond to a Writ of Mandamus from his Court of Appeals.

Thoughts?

For whatever little my own thoughts are worth on this point, I think that this is a bad trend. First, a lower court judge should not be more interested than the litigating parties in achieving a given outcome. That is practically the definition of judicial bias.

Secondly, our justice system has always been run on Blackstone’s famous principle that “[i]t is better that ten guilty persons escape than that one innocent suffer.” The DoJ’s recent machinations around Gen. Flynn’s case have the stink of corruption, but we should not further damage the integrity of the justice system by throwing out Blackstone’s maxim. Once we start letting judges pursue prosecution beyond what the prosecutors themselves would pursue, we are leaving the path of Blackstone and starting down the road of Nemesis.

Uhhh, yes it is “unusual” in a criminal case. And against the DC Circuit Court’s precedent, which the Court helpfully cites to the Judge in its mandamus order. And against Supreme Court precedent. Less than a month ago the unanimous Supremes (opinion by Ginsburg) vacated and remanded a case to the Ninth Circuit for similar shenanigans.

… or to allude to the classic representation of Lady Justice, the judiciary’s skin in the game is the holding of the scales of Justice. The blindfold is there so that THAT holder is not tempted to pick Ends that they think align with their own personal wants/desires/ideologies.

If you want to constrain the meaning of “skin in the game” to only that last set, then I think we may be in agreement.

“A judge will always a skin in the outcome: that the correct legal result entails.”

Yeah idk about that, that is only to the very limited extent that justice be done. Legal results are only important if justice is actually being done. Here it’s pretty clear that there is no justice being done, so whether a correct legal result is reached or not is a moot point. The whole point of having courts is not to have “correct legal results” it is to have justice, and only to the extent that the correct legal result produces justice is it required at all.

“The DoJ’s recent machinations around Gen. Flynn’s case have the stink of corruption, but we should not further damage the integrity of the justice system by throwing out Blackstone’s maxim.”

I think it is at least debatable whether (1) allowing Sullivan to proceed (which does not necessarily mean allowing him to sentence Flynn, but rather allowing him to hear out and consider opposing arguments regarding the dismissal) or (2) allowing blatantly political top-down dismissals become a sanctioned DoJ practice, is worse for the integrity of the justice system.

Right because the DOJ investigating the FBI’s actions and finding them to have been without any legit reason for questioning a citizen in the first place and subsequently finding that the evidence gathered was no good as a consequence (even if relevant to a crime) is all politics.

Frankly I would like the “police” and those overseeing them as a whole to be doing this more often, not less. Especially when it comes to “federal police” like the FBI.

OT, but this may be a world record for patent litigation attorney fee sanctions [IF sustained on appeal and collectible]. Does anyone have any more information? Can anyone really get that kind of blood out of a turnip or its attorneys?
“Bloomberg Law reported that Apple and Cisco were awarded $42 million in attorney’s fees in a patent infringement case brought by Straight Path IP Group Inc. relating to patents for point-to-point internet communication.”

In a rather humorous vein (not sure that this was intended), but “elaborate test that strays from Alice. But that was the point of Alice.” is both a contradiction and a reflection of the Supreme Court that let loose the Gordian Knot OF contradictions that has become the jurisprudence of 101.

“now has it in their head that patents are no longer needed for innovation”

Perhaps a nuanced nit more than anything else, but this view of patents by the Supreme Court is NOT a view of anything be needed lately.

The Supreme Court has more than a century of anti-patent views, and has far more consistently been ‘of a mind’ that patents really have never been needed.

To think that at some point in time, the Supreme Court had a collective view (and understanding) of the value of the Quid Pro Quo is to ascribe something to which evidence has not been proffered.

Even though decisions that one may indicate as leaning more pro-patent may often be seen in historical context as merely being reactions against some of the more anti-patent views than being in and of themselves advocacy for a full strength and worth of patents as innovation protection.

That is true, but something different has happened now where the international corporations have convinced the Scotus that patents are no longer needed.

Probably why they feel so empowered to just trash patents.

The real sad thing is all these academics that are either chosen by SV to occupy respected professor positions or are being paid directly to generate paper after paper to try and muddle patent law to weaken it.

What a bunch of lowlife. It is sad too that they are featured on this website and the few that are trying to quantify the harm to our economy from the devastation of our patent system get little to no airtime.

“but something different has happened now where the international corporations have convinced the Scotus that patents are no longer needed. ”

Fair enough — I can readily see and acknowledge this point.

“Probably why they feel so empowered to just trash patents.”

Yea, this is closer to my longstanding statements that strong patent rights are in a fight with MULTIPLE (different) ideologies. They may disagree with each other on several fronts, but patent rights for others that might upset the status quo is a feature that BOTH sides want to quash.

I have in the past used a ‘reference’ that patents are in the middle, fighting the extremes of BOTH the Left and the Right.

Here, I do take a bit of a liberty with the notion of “Right.”

As I have put it, the Left stands for the poli/ideologic view that any personal property is ‘bad.’ This extends from the extremes of Communism, to even some of the softer forms of Socialism.

The Right though is not necessarily the ‘poli/ideologic view of the opposite of the Left. Rather, by the Right I consider the very entity (or type of entity) that you mention: the large, typically trans-national corporates that would rather compete on established grounds and NOT on innovation.

I completely agree that MOST ALL of academia have been captured. There are few exceptions, but by and large, academia long ago was captured ideologically, and the true purpose of higher education: the teaching of critical thinking was supplanted with a type of ‘virtue-signaling’ promotion of those who could best regurgitate back the mantra of the ‘controlling elite’ within academia.

Night Writer said, “The Scotus will probably look at 101 again in five years or so when they deem it ripe.”

You are assuming several things.

1. In five years there will still be a Supreme Court. Trump could very well void the results of this year’s election because of massive voter fraud (too many Democrats voting despite the obstacles put in their way), proclaim himself President-For-Life, designate Donald Jr as his heir apparent, and dismiss Congress and the Supreme Court.

2. In five years there will still be a United States of America. As a result of the civil war caused by #1 The United States could break down into several smaller countries. Some of them will be under Russian hegemony, some under China’s.

a. Texas will definitely be its own country again. Perhaps they will allow Arizona and New Mexico to join them. Florida and Louisiana will be subject to completely devastating annual floods and no one will want them in their new country.

b. California will break up into Southern California, Central California, and Northern California and will join with Oregon, Washington, Alaska, and the former Canadian province of Saskatchewan and form its own country. Can someone come up with a good name for this new country?

c. Nevada might be given a choice to either join Utah (once again called Deseret) or the new California Conglomerate. Or the California Conglomerate will simply take them over.

d. Goodbye, Hawaii, I hardly knew ye. China will give Hawaii to Japan to induce them to voluntarily join the Chinese hegemony. Either that or be destroyed.

e. And, of course, the South Will Rise Again but no one will care this time.

BTW, Utah has recently decriminalized bigamy from a third-degree felony to a minor infraction (like a parking ticket).link to fox59.com Utah is obviously thinking ahead.

Will the other states (while we still have them) have to recognize these now-almost-legal plural marriages?

Nice fanfic. If the south does rise again then it will include texas and fl etc. derp. And the NE should let it, the heartland and cali go. Perhaps under a very loose form of a federation with a super weak federal overseer gov. (the best solution so as to avoid fighting and foreign influence etc, closer to what the constitution actually was before abraham muh insoluable union federalist lincoln). But all that won’t happen for another 50 years at the min, probably closer to 200.

Follow the money: a break-up as described makes for some interesting “what-if” thoughts (as 6 calls it: fanfic), but the path desired by those with the gold (the other golden rule), the path desired of the Corporatacrazy, is NOT served by such a drastic change.

China is indeed a bit of a wild card, as the hegemony there does not brook the power of Corporatacrazy that has festered everywhere else. But I do not see China as having aspirations of any actual occupation outside of its regional sphere. Influence? Sure. But only to the point that no one else interferes “locally.”

The parallel case in the UK is Chamberlain’s GB-B-2402434, granted in the year 2006 with broad independent apparatus claim 1 and method claim 13.

In the UK, prior to grant, the PTO must positively satisfy itself that the subject matter claimed in an application is technical, enabled, novel and is distanced from the global state of the art by an inventive step. No wonder Chamberlain is sore about the outcome in the USA.

Right. The petition explains the following: For simplicity, we refer to “garage door openers,” though the patent covers any sort of “movable barrier operator,” including those used to operate gates and commercial doors. Pet. App. 4a-5a; see Trial Tr. 89 (D. Ct. Doc. 693).

It’s definitely eligible under the Iancu test, but that test is meaningless (and extremely dangerous to follow for anyone advising clients). Several court decisions have already decided that the USPTO guidance is meaningless (including one of the specific examples). That guidance also directly contradicts several court decisions. Quite a few claims for “practical applications” have been held to be ineligible while the Iancu test makes them eligible. Granted, the court decisions have made a mess of things and I think many (possibly all) of those claims for practical applications should be eligible, but you would at least expect the USPTO guidance to follow the current state of the law (regardless of how messed up it is). When it’s time to litigate a patent, the current state of the law is how the decisions get made.